Opinion
August 15, 1952. Rehearing Denied October 14, 1952.
Appeal from the Circuit Court for Palm Beach County, Joseph S. White, J.
Adams, Blank Born, West Palm Beach, for appellant.
Drew, Burns, Middleton Rogers, West Palm Beach, for appellee.
This is an appeal from a final judgment entered against the appellant in an action brought by him under the so-called "Jones Act", the same being Title 46, U.S.C.A. § 688.
Appellee filed motion to dismiss which was granted. Thereupon the appellant filed motion for rehearing which was granted and in the order granting the said motion the Court said:
"An analysis of the cases of Fuentes v. Gulf, etc. Co., 5 Cir., 54 F.2d 69, Bowen v. Shamrock, 139 F.2d 674, Gahagan v. Armao, 1 Cir., 165 F.2d 301, certiorari denied Gahagan v. Armao, 333 U.S. 876, 68 S.Ct. 905, 92 L.Ed. 1152, and South Chicago v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732, leads to the conclusion that this Court was in error by its order granting defendant's Motion to Dismiss the Complaint, in ruling that the deciding factor in the case rests on the fact that defendant's dredge was `filling land that is to become a Palm Beach County Park.'
"A comparison of the cases to which reference has been made, leads to the conclusion that the deciding factor lies in the nature of the work in which the injured party is engaged. The question concerns his actual duties.' South Chicago v. Bassett, supra.
"The Jones Act refers to `those persons * * * who are on board her aiding in her navigation, without reference to the nature of the arrangement under which they are on board.' South Chicago v. Bassett, supra. Those who serve the vessel `in her navigation' are members of the `crew'. South Chicago v. Bassett, supra.
"Thus, in the Gahagan case, it was held that the Claimant was covered by the Jones Act when injured while climbing a platform `to check the navigation lights.' But cf. Fuentes v. Gulf, etc. Co., supra.
"The complaint in the instant case is somewhat vague in showing that plaintiff was on board a vessel in navigable waters `aiding in her navigation'. Application of the rule that the complaint must be construed strictly against the plaintiff, leads to the conclusion that the complaint is defective. However, plaintiff should be given an opportunity to restate his case if he is able to bring himself within the Jones Act as thus interpreted."
In due course the appellant filed an amended complaint to which the appellee filed a motion to dismiss containing the following ground:
"The said Amended Complaint fails to state a claim upon which relief can be granted."
The matter came on to be heard on the motion to dismiss and the Court entered its final judgment as follows:
"Plaintiff claims that he is covered by `The Jones Act', a Federal Maritime regulation.
"The Jones Act covers members of the crew of a vessel, who are on board `aiding in her navigation'. At the time in question, plaintiff was a member of a crew of a dredge then engaged in filling land for a public park. The dredge was not at the time concerned in anywise with navigation. Neither was the plaintiff. He was assisting in carrying out the current operations of the dredge, viz, filling in land.
"It is the opinion of the Court that this case is controlled by principles announced in Fuentes v. Gulf, etc. Co., 5 Cir., 54 F.2d 69.
"The case of Gahagan v. Armao, 1 Cir., 165 F.2d 301, is to be distinguished. There, plaintiff was injured in performing work which related to navigation, viz, attending to the navigation lights required of all vessels lying on or about navigable waters.
"Thereupon, It Is Ordered And Adjudged that the Motion to Dismiss be granted; that plaintiff take nothing by his plaint, and that defendant go hence without day. Court costs are assessed against plaintiff."
This appeal is prosecuted from the final judgment above quoted.
The final judgment is based upon the finding and conclusion of the Circuit Judge that the appellant was not entitled to bring this action under the so-called "Jones Act", Title 46, U.S.C.A. § 688. The judgment is correct and is hereby affirmed, without prejudice, however, to the right of the appellant to pursue such other remedies or to bring such other or further action under other applicable laws as he may deem advisable.
SEBRING, C.J., ROBERTS, J., and GORDON, Associate Justice, concur.